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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Alcarez GIMINEZ, Defendant and Appellant.

Cr. 7230.

Decided: May 28, 1974

Evelle J. Younger, Atty. Gen. by Eddie T. Keller, Deputy Public Defender, Sacramento, for plaintiff-respondent. Robert N. Chargin, Public Defender by Ann M. Chargin, Asst. Public Defender, Stockton, for defendant-appellant.

Defendant appeals from a judgment of conviction of narcotics possession (former Health & Saf.Code, § 11500). Acting under its power of consecutive sentencing, the trial court imposed a prison sentence to commence upon completion of a sentence defendant was already serving.1 The principal issue on appeal is whether the trial court abused its discretion in imposing a consecutive sentence.

Defendant was arrested in San Joaquin County on the present charge in April 1972 and released on bail. In May 1972 he was arrested in Sacramento County for possessing dangerous drugs (former Health & Saf.Code, § 11910). In July, pending resolution of the Sacramento charge, he appeared in San Joaquin County and entered a plea of guilty. At that point the criminal proceedings were suspended for the purpose of considering defendant's commitment as a narcotics addict. (Welf. & Inst.Code, § 3051.) In October 1972 the court found that he was an addict and committed him to the California Rehabilitation Center. He was taken to Sacramento County to respond to the charge there. In June 1973 the Sacramento County Superior Court sentenced him to state prison for an indeterminate term of six months to 10 years. In view of this prison sentence the superintendent of the Rehabilitation Center canceled his commitment to that institution and returned him to San Joaquin County for resumption of the criminal proceeding there.

In July 1973 defendant appeared before the San Joaquin court for pronouncement of judgment. The trial court informed defendant that a five-year informal probation2 would be granted, with a condition that he waive ‘the right of the service of a search warrant in search and seizure at any time of the day or night—.’ Defendant told the court he would prefer a prison sentence rather than submit to the search provision. His attorney joined in the objection, observing that if defendant were released from prison on parole, he would be subject to supervision by his parole officer, moreover, that waiver of immunity from search was an inappropriate condition of unsupervised probation. The judge observed that if he were to sentence defendant to prison, he ‘wouldn't make it run concurrently.’ The court rejected defense counsel's suggestion of a three-year probation period including the condition proposed by the court. Defendant's counsel then reported defendant's preference for an immediate state prison sentence, continuing to object, however, to a consecutive sentence. The court then imposed a sentence to ‘be served consecutively with any other sentence the defendant may be serving.’

The San Joaquin County commitment carried an indeterminate sentence of not less than two nor more than 10 years. (Former Health & Saf.Code, § 11500, as amended by Cal.Stats.1970, ch. 1098.)

Defendant's charge of abuse of discretion encounters traditional appellate reluctance to review criminal sentences. In People v. Fusaro (1971) 18 Cal.App.3d 877, 894, 96 Cal.Rptr. 368, 379, cert. den. 407 U.S. 912, 92 S.Ct. 2445, 32 L.Ed.2d 686, this court stated: ‘A trial court has discretion to determine whether separate sentences for separate offenses are to run concurrently or consecutively. (Pen.Code, § 669; In re Sandel, 64 Cal.2d 412, 416, 50 Cal.Rptr. 462, 412 P.2d 806.) . . .. Discretion is abused only when the action exceeds the bounds of reason, all the circumstances being considered. (People v. Russel, supra, 69 Cal.2d at p. 194, 70 Cal.Rptr. 210, 443 P.2d 794.) A comprehensive roundup of the ‘abuse of discretion’ decisions in various areas of California law would doubtless reveal fluctuating degrees of appellate laissez-faire. In none is appellate review more circumscribed than in sentencing.9 . omitted. The Legislature has by statute fixed the outer limits of reasonableness in sentencing. It permits appellate modification of sentence only in limited situations, of which this is not one. (See Pen.Code, §§ 1181, subd. 7; 1260; People v. Odle, 37 Cal.2d 52, 57–58, 230 P.2d 345.) Aside from those situations, a reviewing court cannot say that a period of imprisonment within the limits fixed by statute exceeds the bounds of reason.'

A number of other California decisions evince appellate reluctance to interfere in discretionary imposition of consecutive prison terms. (People v. Morris (1971) 20 Cal.App.3d 659, 666, 97 Cal.Rptr. 817; People v. Vatelli (1971) 15 Cal.App.3d 54, 64–65, 92 Cal.Rptr. 763; People v. Williams (1968) 260 Cal.App.2d 868, 874, 67 Cal.Rptr. 442; People v. Hubert (1962) 204 Cal.App.2d 617, 619, 22 Cal.Rptr. 450; People v. Van Valkenburg (1952) 111 Cal.App.2d 337, 343, 244 P.2d 750; People v. White (1950) 100 Cal.App.2d 836, 837–838, 224 P.2d 868.)

Defendant asserts the existence of a general appellate power to overturn sentences which abuse judicial discretion. Several California statutes give seeming support to that assertion but have been otherwise construed. Section 1260 of the Penal Code declares that an appellate court may reverse, affirm or modify a judgment ‘or reduce . . . the punishment imposed.’ Section 1181, subdivisions 6 and 7, contain somewhat parallel expressions. Although broad in appearance, these statutes have been construed to permit sentence modification on appeal only when caused by error in the proceedings. They have not been viewed as enlargements of ‘the scope of appellate review over the fixing of the degree or punishment of crime . . ..’ (People v. Odle (1951) 37 Cal.2d 52, 57, 230 P.2d 345, 348; see, e. g., People v. Newman (1971) 5 Cal.3d 48, 55, 95 Cal.Rptr. 12, 484 P.2d 1356; cf. People v. Mabry (1969) 71 Cal.2d 430, 446–458, 78 Cal.Rptr. 655, 455 P.2d 759 concurring and dissenting opinions.) With rare exceptions, California statutory and decisional developments have kept this state on the negative side of the long-standing debate over appellate review of sentences.3

Nevertheless, there is a narrower basis for review of the challenged action. A statutory choice between concurrent and consecutive sentences is but one of a variety of discretionary judicial functions. It is no more immune from appellate review than any other discretionary judicial act. In general, a trial court is bound to exercise its discretion ‘in accordance with established legal rules and a sound legal discretion in the application of such rules to the facts and circumstances of each particular case. . . .’ (Paulson v. Superior Court (1962) 58 Cal.2d 1, 6, 22 Cal.Rptr. 649, 651, 372 P.2d 641, 643.) That sentencing rather than some other function is involved does not arm the trial judge with unbridled power or foreclose appellate inquiry into a claim of arbitrary exercise. In relation to the choice between concurrent and consecutive sentencing, the courts have said ‘error cannot be predicated on such action, unless abuse of discretion is clearly shown . . ..’ (People v. Morris, supra, 20 Cal.App.3d at p. 666, 97 Cal.Rptr. 817, 821; People v. White, supra, 100 Cal.App.2d at pp. 839–840, 224 P.2d 868.) The negation implies affirmation of its obverse—that error does occur when abuse of discretion occurs.

In People v. Fusaro, supra, 18 Cal.App.3d at page 894, 96 Cal.Rptr. 368, 379, we suggested that ‘a reviewing court cannot say that a period of imprisonment within the limits fixed by statute exceeds the bounds of reason.’ The breadth of the statutory alternatives available to a sentencing judge, the infinite variety of human material confronting him and the amorphous quality of the guidelines invite extremes of subjectivity repellent to a system which aspires to even-handed justice.4 The last quoted statement of the Fusaro opinion would foreclose appellate scrutiny, however subjective, arbitrary and unsuitable the trial court's action. The statement was too broad and we now disapprove it.

In the Fusaro opinion we described abuse of discretion as an ‘action [which] exceeds the bounds of reason, all the circumstances being considered.’ (Ibid.) Somewhat later, in the context of criminal sentencing, the Supreme Court posited a somewhat more precise test: ‘It is well established in the law that the severity of the sentence and the placing of defendant on probation rest in the sound discretion of the trial court. [Par.] The term [judicial discretion] implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [Par.] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision.’ (In re Cortez (1971) 6 Cal.3d 78, 85–86, 98 Cal.Rptr. 307, 490 P.2d 819, quoting People v. Surplice (1962) 203 Cal.App.2d 784, 791, 21 Cal.Rptr. 826.)

The discretionary choice between concurrent and consecutive sentences calls for sober pursuit of the recognized goals of criminal justice, guided partly by loose but commonly accepted sentencing criteria and partly by the judge's appraisal of the offender. ‘The intuitive estimate of character by a sentencing judge seasoned by experience lies at the very core of the proper exercise of discretion . . ..’ (In re Cortez, supra, 6 Cal.3d at p. 87, 98 Cal.Rptr. at p. 312, 490 P.2d at p. 825.)

Defendant stood before the trial court at the age of 23. The probation report revealed a lengthy history of narcotics abuse and antisocial behavior. He had indulged in dangerous drugs since the age of 12 and heroin since the age of 18. The court had earlier declared him a narcotics addict. Support of his heroin habit cost from $50 to $150 per day, a factor inviting further antisocial activity. At the time of judgment he had commenced a state prison sentence calling for incarceration and supervised parole which, by Adult Authority decision, would last from six months to 10 years.

The trial court's initial and ultimate sentencing choices moved from an extreme of lenience to an extreme of severity, from unsupervised liberty to a deferred imprisonment creating a possibility of a total of 20 years of incarceration and supervised parole.5 When each of these extremes is viewed as a means of achieving the goals of criminal sentencing, both could not be ‘right’ for any one offender. Without adding to the extensive literature on sentencing objectives, we need consider only the objective of protecting the public against the offender's future criminal conduct. Necessarily implied in the judge's resort to unsupervised probation was a finding that public protection demanded no imprisonment or supervision after completion of the indeterminate Sacramento sentence. Necessarily implied in the judge's alternative selection was a finding that public protection required two to 10 years of imprisonment and supervision additional to the Sacramento sentence. If the goal of public protection was satisfied by an order for unsupervised probation, the consecutive prison sentence was harsh and excessive. If the same criterion justified lengthy imprisonment, it utterly vitiated unsupervised probation. No logically relevant sentencing criteria could simultaneously justify both extremes; hence the choice between them had to be personal, subjective and arbitrary.

A variety of intermediate alternatives were available. Here, however, we review only the exercise of statutory discretion under section 669 and do not engage in general review of sentence suitability. According to the courtroom dialogue, defendant's rejection of exposure to police search as a condition of probation led the judge to impose a prison sentence. If a sentence concurrent with the existing Sacramento sentence represented a relatively far cry from the judge's initial proposal, it had at least the virtue of greater proximity to it. A concurrent sentence would permit two to ten years in prison and on supervised parole. The judge rejected it and chose the most extreme and most severe alternative available to him. The court's selection of the most severe available alternative was not based upon sentencing criteria; rather, it was an expression of the judge's subjective reaction to defendant's rejection of probation. The turn from one alternative to another was essentially arbitrary and not an exercise of discriminating judgment within the bounds of reason.

A subsidiary issue is raised by a claim of error in the trial court's imposition of defendant's consent to a warrantless search as a condition of proposed probation. A defendant who rejects such a condition and is then sentenced to prison may on appeal attack legality of the condition. (In re Bushman (1970) 1 Cal.3d 767, 776–777, 83 Cal.Rptr. 375, 463 P.2d 727.) Consent to warrantless search may be exacted as a condition of admitting a narcotics offender to probation. (People v. Mason (1971) 5 Cal.3d 759, 764, 97 Cal.Rptr. 302, 488 P.2d 630; People v. Bremmer (1973) 30 Cal.App.3d 1058, 1066–1067, 106 Cal.Rptr. 797.) Defendant claims illegality because he would have been at liberty only as a parolee; he would thus be subject to supervision and search by a state parole officer; hence his waiver of search at the hands of local police would serve no purpose. At this point defendant substitutes an objection of policy for one of law. The judge had no way of telling when and under what conditions the Adult Authority might parole defendant. The probation condition was open to modification if it turned out to be inconsistent with later parole supervision. Defendant's situation created no exception to the general rule upholding the search requirement.

When an illegal sentence appears on appeal, the appellate court should affirm the conviction and remand the case for a proper sentence. (People v. Massengale (1970) 10 Cal.App.3d 689, 89 Cal.Rptr. 237.)

The conviction is affirmed and the case is remanded to the superior court for the imposition or suspension of sentence according to law.

I dissent. The majority opinion examined the consecutive sentence imposed by the trial judge and decided he had abused his discretion and that his choice was ‘personal, subjective and arbitrary,’ ‘harsh and excessive’ and ‘not an exercise of discriminating judgment within the bounds of reason.’ This is a strong indictment when considering defendant's attitude and record.

The majority concedes the probation report revealed a lengthy history of narcotics abuse and anti-social behavior. The probation officer reported, inter alia, as follows: The defendant had been known to the narcotics division of the Stockton Police Department since 1968. He had been named in 15 ‘writeups' related to narcotics, and it had been stated that he ‘need to be ‘dried out.” Further, he had pled guilty to possession of dangerous drugs in Sacramento County in 1972 stemming from an arrest of defendant in Sacramento relating to an incident in the liquor department of a local foodstore. At the time of that incident he ‘attempted to stab the guard with a 4-inch knife.’ When searched, he was found to possess dangerous drugs. Also, in 1972, defendant pled guilty to a violation of section 11500 of the Health and Safety Code in San Joaquin Superior Court and at that time he admitted a lengthy history of narcotics use and to the use of narcotics while on bail.

The probation report concludes with:


‘Richard Giminez is now convicted of his third felony and second felony narcotics violation in the past two months. He has a history of narcotics use and arrest dating back several years and admits to injecting heroin while on bail for this matter. The District Attorney has stated he will not oppose a commitment to the California Rehabilitation Center and doctors have been appointed to determine if the defendant is a narcotic addict. Considering the defendant's record, his arrest and conviction in Sacramento County while on bail from this county and his admitted continued use of heroin while facing sentencing on two felony narcotics charges, the undersigned does not believe the defendant is willing to help himself which is necessary for a successful adjustment at the California Rehabilitation Center, and if the defendant is not found to be a narcotic addict, recommends a commitment to the California State Prison System.


‘It is respectfully recommended that probation be denied.’

The proceeding at the time of sentencing was as follows:

‘THE COURT: This is the time for pronouncement of judgment and there is no legal cause why sentence should not be pronounced?

‘On the record it shows that he is no longer eligible for the C.R.C. program, having been committed to State Prison by the Superior Court of Sacramento County.

‘. . .

‘THE COURT: I intended to pronounce judgment and suspend it and place the defendant on informal probation to this Court with certain terms and conditions, in view of the fact that he has already been committed to State Prison.

‘Do you have anything you wanted to add?

‘MR. FRASER [Prosecutor]: I have no objection, Your Honor. I do note that there was an alternate recommendation of State Prison in the probation report.

‘THE COURT: All right, is there anything you want to add, Mrs. Chargin?

‘MRS. CHARGIN [Defense Counsel]: No.

‘THE COURT: All right, no legal cause being shown why sentence should not be pronounced, it is the judgment and sentence of this Court that for a violation of Section 11500 of the Health & Safety Code of the State of California, Possession of Narcotics, a felony, that the defendant be punished by having a State Prison sentence suspended for the period of five years and the defendant placed on informal probation upon the terms and conditions that he:

‘1) Doesn't commit the same or similar offense;

‘2) That he obey all laws:

‘3) And further that the defendant waive the right of the service of a search warrant in search and seizure at any time of the day or night—

‘THE DEFENDANT: (Interrupting) I would rather just serve the prison sentence now. I am not submitting to none of that.

‘MRS. CHARGIN: Your Honor, I might point out that if the defendant is placed on parole from the Department of Corrections that there will be the same type of provision imposed by the supervising Parole Officer.

‘. . .

‘THE COURT: Well, I will put it over to the foot of the calendar and then we can discuss it with Mr. Kenyon. There was a State Prison sentence indicated.

‘I think you got a break by being sent to C.R.C. in the first place.

‘. . .

‘THE COURT: Are you ready in the Giminez matter?

‘MRS. CHARGIN: I believe that it is the defendant's feelings that if the Court is going to place this for five years, which is longer than indicated in my request, and that the Court is going to impose the waiver of search warrant, that he would prefer to have his commitment at this time.

‘THE COURT: Is that what you want to do, Mr. Giminez?

‘THE DEFENDANT: Yes, Your Honor.

‘MRS. CHARGIN: Obviously the defendant would be given credit for time served.

‘THE COURT: I wouldn't make it run concurrently.

‘MRS. CHARGIN: Your Honor, since this predates the violation it seems improper on the consecutive sentence.

‘. . .

‘THE COURT: If the defendant wants to accept the terms and conditions of probation all right, if he doesn't that is something else.

‘MRS. CHARGIN: Your Honor, first of all I strenously object to the Court's indication that he either accept this probation, which he considers onerous, or else the Court intends to impose a consecutive prison sentence.

‘THE COURT; Mrs. Chargin, the probation report recommended against probation to begin with. Actually, very frankly, he was given quite a bit of consideration by the Court at the time he was sent to C. R.C.

‘MRS. CHARGIN: It just seems to me, Your Honor, that it is too far removed to say on one hand ‘We'll grant informal probation for five years, but if you reject probation I will impose a consecutive sentence.’

‘THE COURT: At least I am telling you what I purpose to do. Perhaps I should not tell you anything and go ahead and do it.

‘What do you have to say, Mr. Fraser?

‘MR. FRASER: Your Honor, the People feel that this condition is extremely proper in these matters because it is not only on effective tool to stop the narcotics trade but also I think up to the defendant and it gives him reason not to be around narcotic users and gives him a reason not to be in possession of these items under the penalty that he will be searchable. I have no particular recommendation one way or the other, either State Prison or the suspended under the usual terms and conditions.

‘THE COURT: Mr. Giminez, what do you want to do about it?

‘MRS. CHARGIN: The defendant indicated, Your Honor, that it is the five year term that he feels is excessive, of course he doesn't like the terms of probation, he indicates that for a three year probation period he would be willing to accept the probation as pronounced by the Court. If the Court insists on a five year probationary period he at this point chooses to reject probation.

‘THE COURT: Is that what you desire to do, Mr. Giminez?

‘THE DEFENDANT: Yes, Your Honor.

‘THE COURT: All right, there being no legal cause why sentence should not be pronounced, it is the judgment and sentence of the Court that for the violation of Section 11500 of the Health & Safety Code of the State of California, Possession of a Narcotic, that the defendant be punished by imprisonment in the State Prison for the period of time prescribed by law, this sentence to run consecutively with any other sentence that the defendant is now serving.’

The sentencing court exercised its lawful discretion in imposing a consecutive sentence.


1.  Penal Code section 669 provides in part: ‘When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently, or whether the imprisonment to which he is or has been sentenced upon the second or other subsequent conviction shall commence at the termination of the first term of imprisonment to which he has been sentenced, or at the termination of the second or subsequent term of imprisonment to which he has been sentenced, as the case may be; . . ..’

2.  We gather that in San Joaquin County the phrase ‘informal probation’ refers to unsupervised probation.

3.  See American Bar Association, Project on Standards for Criminal Justice, Appellate Review of Sentences (Approved Draft, 1968); Frankel, Criminal Sentences (1973) pp. 75–85; Mueller and LePoole, Appellate Review of Legal But Excessive Sentences—A Comparative Study, 21 Vand.L.Rev. 411 (1968); Weigel, Appellate Revision of Sentences: To Make the Punishment Fit the Crime, 20 Stan. L.Rev. 405 (1968); Zumwalt, The Anarchy of Sentencing in the Federal Courts, 57 Judicature 96 (1973); see, however, In reLynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921; Comment, California's Cruelty Criteria: Evaluating Sentences After In re Lynch, 25 Hastings L.J. 636 (1974).

4.  See Dawson, Sentencing (1969); Frankel, op. cit. fn. 3; Friedman, The Dilemmas of Sentencing, 44 Cal.St.Bar J. 372 (1969); Kadish, Legal Norm and Discretion in the Police and Sentencing Process, 75 Harv.L.R. 904 (1962).

5.  Under the indeterminate sentence law, the Adult Authority had the power to fix both sentences after the prisoner had served six months of the first sentence. (Pen.Code, § 3021.) On the other hand, the Adult Authority might choose to defer fixing the second sentence until termination of the first. Parole was not available until the prisoner had served a minimum period defined as ‘two calendar years of the aggregate of such consecutive sentences.’ (Pen.Code, § 3043.)

FRIEDMAN, Acting Presiding Justice.

JANES, J., concurs.

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